May 14, 2020
COVID-19 and the courts – The Judicial Response – Updated June 17, 2020
COVID-19 California Courts Roundup (Updated June 17)
“California courts are beginning to ease months of pandemic-related closures. A Judicial Council working group on June 3 released a 75-page pandemic recovery guide that contains guidance for courts on safely reopening. The committee also set aside $5 million in maintenance funds to reimburse courts for COVID-19-related safety measures. Here’s a look at how courts across the state are grappling with all the changes associated with the novel coronavirus as of June 16.”
Coping with COVID – The Indiana Experience – Chief Judge Cale J. Bradford
It has been more than two-and-a-half months since the Court of Appeals of Indiana began working remotely. On March 11, employees were directed to work remotely after some of the Court employees had second- and third-degree exposure to people who tested positive for coronavirus (COVID-19). Since then, the Court has extended instructions to continue operating remotely three times as the State of Indiana continues to try to stay ahead of COVID-19.
The good news: given the importance of the Court’s work, employees were equipped and trained to work remotely. From the start of this unprecedented time, the Court of Appeals of Indiana was fully functioning in remote capacity and conducting business as usual.
Today’s technology has made this transition much easier than it would have been years ago. One week after being sent home to work remotely, the Court held Committee Meetings telephonically. Two weeks after being sent home to work remotely, Court Conference was held via Microsoft Teams, and the Court approved the function of a working group to explore technology that would enable the Court to conduct oral arguments remotely.
After testing multiple video conference technologies, the Court decided Zoom would work best for its continued needs. Judges and staff were all trained to use Zoom, and many security features were applied to the Court’s Zoom accounts.
On May 5, the Court of Appeals of Indiana judges took part in the Indiana Supreme Court Spring 2020 Bar Admission Ceremony, which was held virtually via Zoom and livestreamed from the Court’s website.
History was made again when the Court held its first remote oral argument via Zoom on May 21. Oral arguments are continuing to be scheduled and held virtually for the time being. All oral arguments are livestreamed on the Court’s website, and the recordings are available two hours after the oral argument has ended, just as they were before.
As the state begins reopening, the Court continues to monitor what healthcare and civic leaders share about this situation as it cautiously approaches a return to normalcy. From the beginning, the Court’s paramount concern has been for the health and safety of its employees and every decision has been made with that foremost in mind.
Through such a difficult and unusual time, the Court of Appeals of Indiana has done a great job in moving to, and carrying out, all essential functions in remote status.
Louisiana Parishes Adapt Quickly to Hearings Over Zoom
For more than a month, as the coronavirus pandemic swept through Louisiana, detained juveniles sat in the nearby juvenile jail while Orleans Parish Juvenile Court’s courtrooms — both virtual and real — sat empty.
As the other juvenile courts in Louisiana scrambled to hold essential hearings over the internet through platforms such as Zoom because of the coronavirus pandemic, the Orleans Parish Juvenile court did not.
Instead, they closed their doors on March 19 after announcing that two people who had attended a hearing nine days earlier had tested positive for COVID-19. All hearings stopped. Instead, the judges ruled on individual cases and released detained youths at their discretion. Beyond submitting motions that either were not ruled on or were denied, public defenders couldn’t advocate for their young detained clients. This went on until April 23, when a judge from the Fourth Circuit Court of Appeals ordered them to begin holding virtual hearings.
Maryland Courts Reopen
Beginning at 5 p.m., on Friday, June 5, the Maryland courts will begin implementing its reopening plan that guides courts across the state of Maryland as to how they should gradually return to full operations throughout the next several weeks and months.
There are five phases in the plan and each phase will represent an increase in the level of activity within each courthouse and court office. Depending on the current state of COVID-19 throughout Maryland, it may be necessary for a court and/or jurisdiction to adjust phases.
The Judiciary is closely monitoring the COVID-19 situation and evaluating its ongoing response to this public health emergency. Until further notice, the courts will continue using technology for remote proceedings, either by video or telephone, but please note that this will vary by court location. The general public, members of the media, and attorneys should reference the COVID-19 webpages for the latest information on individual court operations. Court closings related to coronavirus.
The courts are requiring any individual, including employees, seeking access to a courthouse or court office location to:
- Answer a set of screening questions;
- Be subject to temperature checks;
- Wear a facial covering or mask; and
- Practice social distancing
Maryland Court of Appeals Chief Judge Mary Ellen Barbera issued an Administrative Order on the Progressive Resumption of Full Function of Judiciary Operations on May 22.
“The details in the reopening plan were carefully and deliberately crafted by workgroups composed of Judiciary leadership, with the health and well-being of court visitors and employees as the driving force, in our work to increase access to the courts,” Barbera said in a news release. “We acknowledge the courts will not be able to immediately return to full operations.”
Access to courthouses was very restricted during phase one; with the start of phase two, the court will open up for some in-person things, including limited court proceedings, Knight said.
In preparation, Knight and Queen Anne’s County Health Officer Dr. Joseph Ciotola walked through the courthouse and discussed capacity and social distancing. They made arrangements to have personal protective equipment — face masks, gloves, hand sanitizer — on hand in case people show up without it, she said.
During phase two, courts will continue to be closed to public except for those who are necessary to the matters being heard. There will be limited court proceedings and courts will continue using technology — video or telephone conferencing — to cut down on the number of people in the building.
“We have been using technology to be efficient under the limitations of the current pandemic,” Knight said. “And we’re trying to limit paper.”They will be scheduling when people actually come in as of June 8, Knight said.
People will be asked to show up at a specific time. They will need to allow some time for the screening process. Knight said people should check their scheduling notice carefully; instructions will be included.
Anyone seeking access to the courthouse must answer a set of COVID-19 screening questions, have their temperature checked with a no-contact digital thermometer, wear a face covering or mask, and practice social distancing.
“I have to protect the staff as well as the community,” Knight said. “We have to follow proper safe procedures.”
Under Barbera’s orders, the clerk’s office remains technically closed until July 20, when phase three is scheduled to begin. In-person transactions are prohibited with limited exceptions, according to Clerk of Court Katherine B. Hager. Those exceptions include services such as notary and special police commissions, Governor appointment oaths and emergency judicial matters. All those cases are being handled by appointment only.
Even though the clerk’s office is closed to the public, it continues to process all work received. “We are receiving court filings, land recordings, and licenses through the mail or drop box located inside the front doors of the courthouse, as well as electronic filings for MDEC and eRecording for land records,” Hager said. “My staff has worked through the closure since March 17 with some teleworking and some working in the office.
“We have taken considerable measures to ensure it is safe to enter the courthouse for court visitors and staff while staying socially distant.”
Local citizens shouldn’t expect to be called for jury duty any time soon. Jury trials aren’t scheduled to resume until after Oct. 5, Knight said.
Similar stories from other states:
Henry County court officials are planning a phased-in reopening of the courthouse and court services, but it’s unlikely full trials will be offered until at least August.
Meanwhile, the backlog of cases, tickets and service requests continues to increase.
Circuit Court Clerk Jackie Oberg said Wednesday that most services offered by the 14th District Court had slowed to a trickle because of COVID-19 restrictions put in place in March. Those restrictions include limited access to the courthouse, required face coverings, pre-arranged appointments, a reduced court docket and the short-term forebearance of traffic tickets.
“We are seeing some court cases, but cases with very few people involved,” she said. “We’re still on a very limited schedule.” Only bench trials are being conducted for now, with defendants appearing only with their lawyers. “We can’t do a jury trial right now because we have to bring in 50 or 60 people and make selections,”
Pandemic causing massive court system backlog – Television Story
Backlog and Budget Cuts
Court officials warned Monday of a huge backlog of cases built up by the coronavirus shutdown hitting at a time when they will be forced to furlough and lay off staff to meet the state’s requirement to cut spending. Indictments have been delayed, defendants have spent months in jail awaiting trial and court cases have been postponed during the pandemic.
“We are at an all-hands-on-deck moment,” said Brian Amero, the chief judge of the Flint Judicial Circuit in Henry County and president of the Council of Superior Court Judges. “The extent to which this avalanche of work is about to hit superior court judges cannot be overstated.” Amero and other court officials painted lawmakers a picture of a judicial system that will be shorthanded and force those who keep their jobs — including judges — to dig out of case backlogs while earning less money.
Omotayo B. Alli, the executive director of the Georgia Public Defender Council, told lawmakers that if they insist on weeks of furloughs for her staff, “The criminal justice system is going to crash.”
Most Florida state court proceedings are delayed until late July, which means most operations will he curtailed for more than four months.
While other jurisdictions are resuming trials, Florida’s chief justice pushed back a hard deadline on cases with juries until late July and slid reports assessing a pilot program for remote civil jury trials until October. Florida courts will remain closed to all but essential functions through July 20, two weeks longer than previously ordered by Florida Supreme Court Chief Justice Charles Canady. Statewide grand jury proceedings won’t resume until July 27.
The first statewide court restrictions took effect March 13, which means the mass shutdown with limited exceptions will last more than four months. The Florida Supreme Court and District Courts of Appeal have adopted virtual arguments, and constitutionally mandated hearings are being held.
Miami-Dade Circuit Court is part of a five-circuit group testing virtual civil jury trials, and Broward Circuit Chief Judge Jack Tuter has been pushing ahead on his own with remote experiments.
Articles About Remote Oral Arguments
Telephonic Oral Arguments – United States Supreme Court
“ . . . those arguments no longer present the largely unstructured free-for-all in which the justices compete with one another to ask questions and the advocates struggle to answer before being abruptly interrupted over and over again. Instead, the high court’s telephonic arguments have resulted in a procedure whereby, after brief introductory remarks from the advocate, each Justice is recognized individually by the chief justice to conduct a few minutes worth of questioning before moving on to the next questioner. This new format certainly has its own pluses and minuses. Justice Clarence Thomas has become a full-fledged participant in the court’s telephonic oral arguments, to the delight of many. Statistics compiled by Adam Feldman at his “Empirical SCOTUS” blog show, surprisingly, that the advocates are speaking more under the new format than they had been speaking during in-person oral arguments. And no doubt the biggest plus is the general public’s historic ability to listen live to the argument of cases pending before the nation’s highest court.
“On the minus side, the new oral argument structure prevents advocates and the justices from developing momentum in discussing major points at oral argument, as the telephonic questioning tends to be more disjointed as each justice can focus on whatever matters most to him or her. And it is difficult for the justices to fully explore the questions of most concern to them and for the advocates to have the benefit of sustained follow-up questions from any single justice.
“Nevertheless, the organized manner in which the U.S. Supreme Court is conducting its telephonic oral arguments does address one major concern with that method of appellate oral argument: the lack of visual cues preventing the advocate from seeing if a justice is about to ask a question or is satisfied or unsatisfied with the advocate’s answers to previous questions. The free-for-all method of appellate oral argument, whereby judges interrupt the advocate at will, works well for in-person argument but threatens unintelligible cross-talk during telephonic argument.”
Read more: https://www.law.com/thelegalintelligencer/2020/05/11/the-virtues-of-virtual-appellate-oral-arguments/
Telephonic Arguments Supreme Court and Elsewhere. Mixed Reviews.
“Since the beginning of the pandemic, the court – which has often stayed open and heard argument even when inclement weather or budgetary constraints shut down other government institutions – has been operating in relatively uncharted waters. As Tom Goldstein discussed on the blog last month, the closest analogy may be the Spanish flu of 1918, which prompted the justices to postpone oral arguments for approximately a month in the fall of that year. But the Supreme Court of 2020 has one advantage available to it that the justices of 1918 did not – modern technology.” many state supreme courts and lower federal courts around the country have responded to the pandemic by holding arguments remotely. Some, like the U.S. Court of Appeals for the District of Columbia Circuit, held oral arguments by telephone, while others – such as the highest courts in Michigan and Texas – relied on video-conferencing platforms such as Zoom. In each of these courts, the public could listen to (for the D.C. Circuit) or watch (for Michigan and Texas) the oral arguments in real time. The initial experiments with remote arguments did not go off seamlessly. . .
Courtroom access: Faced with a pandemic, the Supreme Court pivots
Kansas Court of Appeals
Holding their first “virtual argument.” Case involves a dispute over gas well revenue. “Kansas courts are committed to delivering timely justice, especially during challenging times such as we are experiencing now,” said Karen Arnold-Burger, chief judge of the Court of Appeals. “We decide many cases on their written record, but some attorneys want the opportunity to argue their cases before the court, and oral argument by videoconference allows us to accommodate them.” The Court has allowed attorneys to appear over videoconference since 2016, but this will be the first time the judges will also call in from separate locations. The arguments will also be livestreamed over the Court’s YouTube channel for the public to view.
Louisiana Fifth Circuit Court of Appeal
The Louisiana Fifth Circuit Court of Appeal became the first Louisiana appellate court to hear oral arguments remotely when it successfully heard six arguments this week via the videoconferencing application, Zoom. Participating from their respective homes and offices, all eight Judges and fourteen attorneys convened in virtual courtrooms to argue the six cases
Read more: https://wgno.com/news/louisiana-fifth-circuit-court-of-appeal-first-to-hear-argument-via-zoom/
Maryland Court of Special Appeals
Oral arguments for May 2020 and June 2020 will take place remotely using Webex as its platform. To
help litigants familiarize themselves with Webex, the Court’s Clerk will offer test Webex sessions a few days prior to scheduled argument. Counsel who have not previously used Webex are strongly encouraged to participate in one of these test sessions. Public access to arguments held remotely will be provided by posting a recording of the argument on the Court’s webpage as soon as possible after arguments have concluded.
Read more: https://www.courts.state.md.us/cosappeals
Florida Courts of Appeal
“Florida’s appellate lawyers and judges are at the forefront of utilizing technology to prevent the annihilation of oral arguments—a practice that both sides crave.”
Impact of Epidemic on Court Operations
- New York
“New York state court officials . . . reported 168 confirmed cases of COVID-19 among its court employees, including 17 judges — two of whom have died.”
Justices Johnny Lee Baynes and Noach Dear and, Justice Baynes died. Justice Baynes died on March 26 after serving nearly three decades on the bench. Justice Dear served as a New York City councilman from 1983 to 2001 before taking the bench in New York City civil court in 2008.
Read more: https://www.law360.com/legalindustry/articles/1267819/covid-19-sickens-17-judges-over-150-court-staffers-in-ny
Recently Elected NY Judge Dies Of COVID-19
San Antonio Judge With COVID-19 Urges Public To Stay Home
NY Judges Release 122 Inmates As Virus Cases Spike In Jails
NY Courts Report 2 Dozen COVID-19 Cases, Adding DA, Juror
New York State Courthouses To Set Coronavirus Restrictions
- Georgia. COVID19 spreads through the Dougherty County Courthouse
An infected juror potentially exposed the entire jury pool, the prosecutor, the defendant and his lawyer, court bailiffs, the judge and her court reporter and other court personnel. While the DA in the criminal case did not recall the juror displaying any signs of illness, the juror sent a note to the presiding judge on the third day of trial. Thereafter, staff throughout the courthouse began testing positive for the virus. County Probate Judge Nancy Stephenson died. Her husband, Dougherty State Court Judge John Stephenson became ill with the virus.
Read more: https://www.law.com/dailyreportonline/2020/04/07/juror-zero-how-covid-19-spread-through-the-dougherty-county-courthouse/#
- Indiana – Virtually empty: Courts try to keep dockets moving amid pandemic
“Like the rest of the world, the judiciary has been walking a tightrope for the last six weeks, trying to keep courts open while protecting judges, staff, lawyers, litigants and the public from COVID-19 exposure.
“The solution, as in most other professions, has been a transition to remote work, though that transition has not been total. Some judges still have come to court every day, working alongside a skeleton staff to keep dockets moving. Some clerk’s offices have remained open, too, offering limited access to public services all while adhering to social distancing guidelines.
“Also like the rest of the world, the judiciary is grappling with the question of essential versus non-essential services. Which hearings can be continued, and which must continue to honor defendants’ rights?
“And then, of course, there’s the future. As society begins to reopen, how quickly can courts restore operations to full capacity? What will all of the continuances mean for already heavy caseloads?”
Read more: https://www.theindianalawyer.com/articles/virtually-empty-courts-try-to-keep-dockets-moving-amid-pandemic
- Florida. Florida Chief Justice appoints 17- member group to develop plan for a return to normal court operations.